THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE LOWERY, Defendant and Appellant.
No. H042551
Sixth Dist.
Feb. 10, 2017
533
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Claudia H. Amaral, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
RUSHING, P. J.—This case concerns the meaning of the term “value” in subdivision (b) of
Defendant Brian Lee Lowery tried to cash a stolen forged check, but the cashier determined it was forged and refused to cash it. After pleading no contest to possessing a fictitious check, Lowery petitioned to designate the offense a misdemeanor under Proposition 47. Both the prosecution and Lowery stipulated to his eligibility to have the offense designated a misdemeanor. The trial court, however, rejected this stipulation. The court denied the petition on the ground that the check was written for $1,047.85, exceeding the $950 limit under
In rejecting the parties’ stipulation as to Lowery‘s eligibility, the trial court erroneously ruled that the value of the check was equal to its written value as a matter of law. Accordingly, we will reverse the order denying the petition and remand with instructions to hold an evidentiary hearing on the matter.
I. Factual and Procedural Background
In 2009, Davlyn Giovanetti told police five checks had been stolen from her business in Morgan Hill.2 Lowery tried to cash one of the checks in the amount of $1,047 at a check cashing business in Gilroy. The cashier, however, suspected the signature was not genuine. The cashier called Giovanetti, who told him not to cash the check. The cashier kept it, along with a copy of Lowery‘s driver‘s license. Lowery subsequently told police a woman named “Ann” had given him the check as payment for collecting scrap.
In 2010, Lowery pleaded no contest to possession of a fictitious check. (
The trial court issued a written order setting a hearing on the petition. The order stated, “Upon review by this Court, it appears that Defendant is ineligible for the stipulated relief. Although
At the hearing, Lowery was represented by the public defender, but he did not personally appear. Neither defense counsel nor the prosecutor spoke. The following is the entire transcript: “[THE COURT:] Line 4 is Brian Lee Lowery. In this case, I find that defendant is ineligible for the requested relief. [¶] He is seeking reduction of the felony offense in this case in Count One. That‘s a violation of
II. Discussion
Lowery raises several arguments. First, he contends the trial court abused its discretion by rejecting the parties’ stipulation as to his eligibility to have his offense designated a misdemeanor. Second, he contends the trial court should have afforded him an evidentiary hearing on the matter. Alternatively, he argues that his attorney provided ineffective assistance of counsel by failing to request a hearing or interpose various objections. Finally, he argues the court erred by relying on inadmissible hearsay statements in the police reports.
The Attorney General responds that Lowery forfeited his claims by failing to object to the trial court‘s ruling. As to the substance of Lowery‘s first claim, the Attorney General contends the court was not bound by the parties’ stipulation because it involved a question of law. As to the merits of the petition, the Attorney General contends Lowery did not meet his burden of demonstrating his eligibility for relief because he failed to show the value of the check did not exceed $950.
A. Forfeiture
We first consider whether Lowery has forfeited his claims on appeal by failing to object below. Lowery contends any objection would have been
Although Lowery challenges the court‘s reliance on police reports, the parties do not dispute the essential fact—that the check was written for $1,047.85. The issue is whether Lowery was ineligible because the $950 statutory limit of
B. Legal Principles
Among other things, Proposition 47 established a procedure whereby defendants who have completed their sentences may petition to have certain felony convictions designated misdemeanors. (
As an issue of statutory construction, we review the trial court‘s interpretation of Proposition 47 de novo. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) “When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative‘s language, giving the words their ordinary meaning
C. “Value” as Used in Penal Code Section 473 Means Actual Monetary Worth
Based on the written value of the check at issue here, the Attorney General takes the position that the check had a value exceeding $950 as a matter of law. Lowery, relying on People v. Cuellar (2008) 165 Cal.App.4th 833 (Cuellar), contends the value of the check was limited to the intrinsic value of the paper on which it was written. We find neither argument convincing.
We look first to the ordinary meaning of the initiative‘s language. Although the term “value” may have different meanings in different contexts, its ordinary meaning in the economic context refers to the actual monetary worth of an object, typically as measured by fair market value. Black‘s Law Dictionary defines “value” as “[t]he monetary worth or price of something; the amount of goods, services, or money that something will command in an exchange.” (Black‘s Law Dict. (8th ed. 2004) p. 1586, col. 2, italics added.) California courts are in accord that the ordinary meaning of “value” refers to actual monetary value, e.g. as measured by fair market value. “The ordinary and commonly understood meaning of ‘value’ is fair market value.” (Manhattan Sepulveda, Ltd. v. City of Manhattan Beach (1994) 22 Cal.App.4th 865, 870, citing cases.)
This construction has long been applied to the
We further note that Proposition 47 uses the term “value” in several contexts that appear to refer to the actual monetary value of the property, not the face value or nominal value. (See, e.g.,
Evidence of the voters’ intent further supports interpreting “value” in
Lowery contends the value of the check was limited to the value of the paper on which it was written because a forged check is a nullity. For this proposition, he relies on Cuellar, supra, 165 Cal.App.4th 833. Cuellar attempted to use a forged check to purchase cosmetics at a department store, but the clerk suspected the check was false and refused to honor it. Cuellar grabbed the check from the clerk‘s hand and left the store. A jury convicted Cuellar of grand theft from a person, among other crimes. (
Cuellar, decided several years before Proposition 47, is inapposite here. This case concerns the statutory construction of
We think a forged check may have a monetary value equal to its written value. (Cf. People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745.) If Lowery had successfully cashed the check for its written value, this would be overwhelming evidence that it was worth its written value. But other extrinsic factors may be equally relevant to the determination such that an evidentiary hearing is required. A defendant may be able to introduce evidence showing the actual monetary value of the check is less than its written value. For example, a check may be so ineptly forged that even the most credulous clerk would refuse to honor it. A poorly forged check for a million dollars is unlikely to be cashed, and it makes little sense to assign the written value to such a check. The more serious crime would consist of expertly forging a check for a thousand dollars. Allowing a defendant to present evidence that a forged check was not likely to be cashed is therefore consistent with the primary purposes of Proposition 47, which include reducing the number of nonviolent offenders in state prisons and reserving prison sentences for more serious offenders. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1389-1390.) A defendant might also be able to present evidence through an expert witness that a forged check has a monetary value less than its written value based on a discounted price paid on the street. (See United States v. Tyers (2d Cir. 1973) 487 F.2d 828, 831 [jury was properly instructed that it could consider “street value” of stolen money orders].) Proposition 47 relief may also be summarily granted based on the face amount (for example where a forged check is written for less than $950), as it is virtually certain that the market value of a forged instrument would not exceed its face amount.
For the above reasons, we hold the term “value” in
The order denying Lowery‘s petition is reversed, and the matter is remanded to the trial court for an evidentiary hearing on the value of the check and any other facts pertaining to Lowery‘s eligibility under Proposition 47.
Premo, J., and Grover, J., concurred.
On February 17, 2017, the opinion was modified to read as printed above. Respondent‘s petition for review by the Supreme Court was granted April, 19, 2017, S240615.